Wring Out the Vote

Hal Berghel

Most media focus on the candidates in the 2016 election. But that overlooks some unusual that may prove to be far more important.

Arizona held its presidential primary on March 22, 2016. It had reduced the number of polling places available in the 2012 presidential election from 200 to 60, allegedly for cost savings, producing exceedingly long lines at many polling places. Maricopa County (greater Phoenix) had similar irregularities with mail-in ballots. 2 Coincidence? Perhaps, but Arizona has a long history of questionable voting practices, 3 as do many other states, including several in the Old South. 4 Similar problems have also been reported elsewhere, even re such as New York City. 5

These are ominous signs.

Voting Rights

The right to vote has always been a contentious concept in the US. As many have pointed out over the centuries, the phrases “government of the people” and “blessings of liberty” were used very loosely at the time the country was founded. What was meant was government of and blessings to the class of white, male, propertied, taxpayers . 6 By some accounts, only 6 percent of the population was eligible to vote in the first presidential election in 1789. 7 The power elite of the time liked it that way. In fact, among neoconservatives today this is still a popular sentiment (www.youtube.com/watch?v=8GBAsFwPglw).

Universal suffrage was never countenanced at the time the US was founded. swhen our country was founded. Some,individuals such as James Madison and Susan B. Anthony, felt that this was a fundamental mistake (see “ Further Reading ” sidebar for more history on suffrage in the US). Others, to this very day, seek to restore limited suffrage. But today, the restrictions are not based on race, gender, and property ownership, but rather on partisanship and ideology.

The expansion of the voting franchise came gradually and with considerable resistance. The Fifteenth and Nineteenth Amendments gave former slaves and women the right to vote in 1870 and 1920, respectively. The Civil Rights Act of 1875 and the Indian Citizenship Act of 1924 slowly extended and reaffirmed these rights. It's ironic that the Native Americans were disenfranchised the longest—they were the first to lose natural rights and the last to get them restored. However, although this legislation might have allowed the right to vote, it didn't entail the ability to vote. And this was no accident of history.

The Voting Rights Act (VRA) of 1965 was intended to remedy de facto discrimination that continued after the passage of post-Civil War voting rights legislation. Although the Fifteenth Amendment specifically guaranteed the right to vote to all citizens “without regard to race, color or previous servitude,” some states refused to recognize them. The Jim Crow era, the period that followed the passage of the Fifteenth Amendment and the end of Reconstruction in 1877, marked the formal introduction of voter disenfranchisement laws. So-called “black codes severely restricted the exercise of voting rights by African Americans, in particular.

The VRA sought to neutralize Jim Crow laws by requiring strict oversight of affected jurisdictions (basically the old south). This included a Pre-Clearance Section (Section 5) of the VRA that required “covered” jurisdictions to seek preapproval from the Department of Justice for proposed election law changes that might negatively affect protected minority participation in the voting franchise. Such a stipulation gave the VRA some teeth, as some jurisdictions had continued to use innovative ways to disenfranchise subclasses of voters—a practice that has been used with great effect in some parts of the US since Reconstruction.

In section 4(b), the VRA spelled out a coverage formula used by the Department of Justice to impose preclearance on the relevant jurisdictions. It is this coverage formula that the Roberts court struck down as unconstitutional in Shelby County v. Holder in 2013. 8 Without the ability to specify which states are subject to preclearance requirements, by definition, none are. It's the Shelby decision that voting rights advocates decry as having gutted the VRA. Writing for the 5–4 majority, Chief Justice John G. Roberts Jr. opined that times had sufficiently changed since the 1965 VRA enactment that the coverage formula no longer applied. Roberts opined that a history of voting rights abuse over a century and a half was insufficient to presume that the problem still exists. Justice Ruth Bader Ginsberg, writing for the minority, pointed out that “There is no question … that the covered jurisdictions have a unique history of problems with racial discrimination in voting.” One can best appreciate the detachment of some of the justices from reality by reference of the exchange between Justice Kennedy and Neal Katyal, Deputy Solicitor General, in the oral arguments in Austin Municipal Utility District v. Holder : 9

Kennedy: This is—this is a great disparity in treatment, and the government of the United States is saying that our States must be treated differently. And you have a very substantial burden if you're going to make that case … .

Kaytal: … What Congress has historically done ever since the inception of the Voting Rights Act is target those States where discrimination is so rooted that it is hard to get rid of without preclearance.

It is clear that the historical revisionists on the court make no concessions to the evolutionary patterns of racism and voter discrimination in the South.

It's in this context that our current experience with voter disenfranchisement must be understood. As the Shelby decision helped bring back formalized voter disenfranchisement: oter identification (ID) laws, new apportionment maps, proof-of-citizenship requirements, bans on out-of-precinct and absentee voting, abolition of same-day registration, shortened early voting periods, more rigid scrutiny of absentee ballots, limits on mailed ballots, prohibition of mail ballot couriers and online voter registration, and so forth. This postmodern Jim Crowism is all about challenging voter access, 21st-century style, but with a new twist.

New Millennium Jim Crow

Racially motivated limitations on voting were generally associated with a coalition of the South's white “redeemers,” who were the wealthy white landowners associated with the Democratic Party in the last part of the 19th century. As Reconstruction ended, the redeemers sought to disenfranchise African Americans—who at the time represented a significant percentage of the population and could influence the outcome of elections. Amendments to state constitutions and statutes were passed to disenfranchise these new voters and circumvent the Fifteenth Amendment.

Post-Reconstruction disenfranchisement efforts took many forms: poll taxes, literacy tests, unreasonable residency and recordkeeping requirements, grandfather clauses (if your grandfather didn't have the franchise, neither did you), white-only primaries, and so forth. 10
Disenfranchisement had the desired effect of keeping African Americans away from the polls and returning political control of the south to the white supremacists. While disenfranchisement under the law largely disappeared since the 1965 Voting Rights Act, de facto disenfranchisement remained only to become overt again after the Shelby decision. This 2013 decision contributed to the results reported this spring in Arizona and New York. The Shelby decision paves the way for a new Jim Crow era. The means and the motives of the old and new Jim Crow are similar: maintaining control of the government by extra-electoral means.

Now let's be clear: no one is claiming that these states are violating the letter of the law. Consider the wave of new voter ID laws that came after the Shelby decision, not before; they wouldn't be possible in “covered” jurisdictions prior to Shelby because the Department of Justice would measure the laws' de facto effect, not just the laws themselves. Therein lies the travesty. It's the effect and not the literal meaning of the voter ID laws that is the problem.

Voter ID laws are justified syllogistically:

P1: Voter ID laws reduce the risk of voter impersonation fraud, and

P2: States have a compelling interest in reducing voter impersonation fraud.

C: Thus, states have a compelling interest for passing voter ID laws.

The problem is that although P1 seems innocuous enough, it's only vacuously true. There's no evidence of significant voter impersonation or fraud in the US; and “where significant here means present to the extent necessary to influence election outcomes. The penalties are just too great. How much would a criminal in Pennsylvania charge to impersonate another voter when a conviction could result in seven years in prison and a $15,000 fine?

In the two major judicial decisions on voter ID laws, both Judge Richard Posner of the Seventh Circuit 11 and Supreme Court Justice John Paul Stevens 12 admitted that although no evidence of voter impersonation fraud existed, the state still had a compelling reason to try to prevent it. That seems incontrovertible until one considers the decision's negative externalities: namely, that the effect will be de facto voter disenfranchisement of disadvantaged groups. Both Posner and Stevens admit that voter ID laws likely impose a “heavier burden” on disadvantaged voters Posner even admits that these voters are most likely registered Democrats. This is a throwback to Jim Crowism but with a partisan spin. Responsible citizens should read these court decisions and reflect on whether justice is being served.

The first premise above is devilishly deceptive. There's essentially no voter impersonation fraud to address, but the voter ID law's adverse effects are focused, partisan, and effective. This is just one of many current tactics. In Arizona, citizens were subjected to a “time tax.” As with voter ID laws, we could dismiss partisan motives were the effects minimal, random, and offsetting. But such does not appear to be the case. What are we to conclude if it applies in precincts with large minority and poor populations. ? Many observers have argued that a sinister strategy is at work: make it difficult for those of certain political persuasions to vote. 13–15 Disenfranchisement is a political strategy today just as it was after Reconstruction. The difference isn't conceptual, but operational. The faces and political parties have changed, but not the intent.

Listen for Noise

If I'm right about this, we should all be able to see confirming instances in the current election cycle, most especially in minority precincts. Though unlikely to trigger much investigative journalism, they'll generate political “noise,” and the noise (but not the root cause) will usually be reported and free for all to observe.

 Reduced or eliminated opportunity for mail-in or early voting, particularly in communities of unemployed or hourly workers where citizens have reduced opportunities to vote;

 Documented imbalance in resource allocation that differs by precincts according to socio-economic status;

 Closed primaries, which tend to favor blind loyalty;

 Open primaries – although it may be counter-intuitive, open primaries can be used to suppress votes as well as closed primaries – but with a twist. Some states allow partisan registrants to vote in other primaries if their party elects not to have one. The effect of this can be to sabotage the primary of your opponents if your party has an incumbent.

 Required early registration, which tends to penalize hourly workers, citizens with disabilities, and the poor ;

 Voter ID requirements, which tend to disenfranchise communities in which requisite IDs are not normally required;

Though none by itself is necessary and sufficient to ensure voter disenfranchisement, collectively they certainly suggest as much, particularly in minority, poor, and politically alienated communities. Watch for them.

There's no end to the American brand of political chicanery.

In defending nullification of the VRA's coverage clause, Roberts wrote: “Things have changed in the South … . Blatantly discriminatory evasions of federal decrees are rare, and minority candidates hold office at unprecedented levels.” 16 But this is a red herring. Minority participation is only an indication that voter disenfranchisement under the law has decreased, but it says little about voter disenfranchisement in practice. Remember that Southern redeemers made a similar claim while imposing Jim Crow laws and encouraging discriminatory practices. Roberts' reading of American history, if not politically biased, is certainly naive.

Further Reading

An excellent diachronic study of American voting practices can be found in Tracy Campbell's book, Deliver the Vote: A History of Election Fraud, an American Political Tradition—1742–2004 (Basic Books, 2006). The book covers the corrupting influences that affect American politics, from George Washington's liquor-oriented electioneering tactic in his 1758 campaign for the Virginia House of Burgesses to the current debate over whether states should insist that a paper trail follow presidential elections. Campbell makes a convincing historical argument that the US's voting franchise has a checkered past associated with deeply corrupted practices. Although the nature of the corruption has changed over the years, the motives haven't. Campbell provides a comparison between the deceptive, dishonest, and fraudulent election practices over the past few centuries, culminating in what many perceive as the election of George W. Bush by the Rehnquist Court in 2000 and driving home the late justice Antonin Scalia's observation that “… there is no right of suffrage under Article II.” Indeed. That was the flaw that was addressed by James Madison and Susan B. Anthony, as mentioned elsewhere in this column.

Deliver the Vote also extends our voting franchise vocabulary. Have you heard of “fagot voting?” In the earliest days of our nation, voting was a franchise extended to landed gentry. To get around that, office seekers would temporarily vest land ownership in the hands of their supporters for the purposes of voting. One cannot invest the franchise in property less men, John Adams said. If that were allowed, where would the franchise end? Or how about “Rhode Islandism? The practice of vote buying was so prevalent in Rhode Island in the mid-1700s that the state lent its name to the practice. Consider also the eponymous “Mississippi Plan” of the post-reconstruction south. Mississippi was so successful in suppressing black voters that their tactics (e.g., poll taxes, property qualifications, literacy tests) became codified in state laws throughout the south.

For further edification see Campbell, Tracy, Deliver the Vote: A History of Election Fraud, an American Political Tradition – 1742-2004, Carroll & Graf, 2004.

REFERENCES

F. Santos, “Angry Arizona Voters Demand: Why Such Long Lines at Polling Sites?,” The New York Times , 24 Mar. 2016; www.nytimes.com/2016/03/25/us/angry-arizona-voters-demand-why-such-long-lines-at-polling-sites.html?_r=0).

E.A. Harris, “Voting Problems Prompt Comptroller to Vow Audit of New York City's Elections Board,” The New York Times , 20 Apr. 2016; www.nytimes.com/2016/04/20/nyregion/new-york-voters-face-problems-at-the-polls.html.